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SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, Ajay Rastogi, JJ.
Union of India & Ors – Appellants
Versus
Lt Cdr Annie Nagaraja & Ors – Respondents
Civil Appeal Nos. 10225-10230 of 2016, 3359 of 2017, 5392 of 2019, 2181, 2177, 2178, 2179, 2182-87 of 2020, SLP (c) Nos. 30791-96 of 2015, 30337 of 2016 With Diary No. 26406 of 2017, 27060, 27061 of 2019
Decided On : 17-03-2020
(a) AFT Act 2007 - Sections 30 and 31 - Appeal to supreme Court - Common order of AFT I six OAs - Union of India seeking leave to appeal only in one OA - Whether can file appeal against all the six OAs - Question left open. (Para 56)
(b) Navy Act 1957 - Section 9 r/w regulations 122 and 203, Navy Regulations, 1963 - Policy decision - Grant of Permanent Commission to SSC officers - Dependent upon availability of vacancies, suitability of candidate and recommendation by Chief of Naval Staff - Common to all SSC officers, men and women in stipulated cadres - Regulation 203 - Communication dated 25 February 1999 final and not anticipatory - Communication of 2008 in ignorance of that of 1999 and not a conscious departure from that policy. (Para 59, 63, 64, 65, 67)
(c) Administrative law - Numerous excuses are no answer to the constitutional entitlement to dignity attaching to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field - A level playing field ensures that women have the opportunity to overcome discrimination based on their competence, ability and performance - Contention that women cannot sail alongside men sailors cannot be accepted. (Para 68, 73)
(d) Administration of justice - Pendency of appeal without stay of impugned order - Does not permit non-compliance of the impugned order. (Para 89)
(e) Navy Act 1957 - Section 9 r/w regulation 203, Navy Regulations, 1963 - After issuance of policy decision of 1999 - Navy bound by regulation 203 - Not doing so resulting in a serious miscarriage of justice to the SSC officers. (Para 91)
(f) Administration of justice - Rectification of court action - Court order detrimentally affecting rights of citizens - Court duty bound to remedy the situation and to rectify the injustice to the extent that is possible. (Para 94)
Facts of the case:
Six Writ Petitions under Article 226 of the Constitution were instituted before the Delhi High Court. The petitioners, seventeen in number, were women officers who joined the Indian Navy as Short Service Commissioned Officers in the Logistics and Air Traffic Controller cadres and the Education branch. Six of them were officers in the Logistics cadre, nine in the Education branch and two in the ATC cadre. Their grievance is that despite completing fourteen years of service as SSC officers, they were not considered for the grant of Permanent Commissions and were discharged from service.
The Union of India in the Ministry of Defence("MoD") issued a policy letter dated 26 September 2008 granting PCs to SSC officers in all the three branches of the Armed Forces. However, the offer was restricted to certain categories and was to operate prospectively for the benefit of future batches inducted on SSCs after January 2009.
In the case of Commander Priya Khurana seven SSC officers were recruited in 2002 in the Indian Navy in the Logistics and ATC cadres and the Education branch. They sought the grant of PCs and challenged the policy document dated 26 September 2008 as unconstitutional to the extent that it operated prospectively and restricted the grant of PCs to a few cadres/branches. Consequently, there was also a challenge to the implementation guidelines dated 3 December 2008 issued by the Integrated Headquarters of the MoD. The officers challenged their release from service on the completion of their tenure of SSC engagement.
Finding of the Court:
By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations.
Result: Appeals disposed of.
Based on the provided legal document, here are the key points:
Case Overview * The case involves Civil Appeals arising from decisions of the Delhi High Court (Annie Nagaraja v Union of India) and the Armed Forces Tribunal (Priya Khurana v Union of India) regarding the grant of Permanent Commissions (PCs) to Short Service Commissioned (SSC) women officers in the Indian Navy (!) (!) (!) . * The petitioners, seventeen women officers, challenged their discharge after completing fourteen years of service, alleging they were denied PCs despite completing their tenure (!) (!) . * The Union Government had issued a policy letter on 26 September 2008 granting PCs prospectively only to future batches in specific cadres, excluding those already in service (!) (!) .
Statutory and Policy Framework * Section 9(2) of the Navy Act 1957: This section allows the Central Government to specify departments/branches where women can be appointed. Notifications issued on 9 October 1991 and 6 November 1998 lifted the statutory bar for women in specific branches (Logistics, Law, Education, and later Executive, Engineering, Electrical) (!) (!) (!) . * Regulation 203 (1963 Regulations): Once the statutory bar was lifted, the grant of PCs became governed by Regulation 203, which applies to all SSC officers (men and women) subject to vacancies, suitability, and recommendation by the Chief of Naval Staff (!) (!) (!) . * Policy Letter of 25 February 1999: This communication, sanctioned by the President, explicitly stated that the policy for granting PCs would be in accordance with Regulation 203, covering both men and women in all branches (!) (!) (!) . * Policy Letter of 26 September 2008: This letter restricted PCs prospectively to women "to be inducted" in specific cadres and ignored the 1999 policy, leading to the current dispute (!) (!) .
Court Findings * Validity of 1999 Policy: The Court held that the 25 February 1999 policy was not anticipatory but a binding decision making the grant of PCs to SSC officers (including women) governed by Regulation 203 (!) (!) . * Invalidity of 2008 Policy: The Court found the 26 September 2008 policy invalid as it was prospective and restricted to specific cadres, contrary to the 1991/1998 notifications and the 1999 policy. The decision-making process for the 2008 policy was arbitrary as the earlier 1999 policy was not placed before the authorities (!) (!) . * Gender Stereotypes: Arguments that women cannot sail alongside men due to physiological differences or lack of infrastructure on Russian vessels were rejected as unconstitutional stereotypes not supported by the 1999 policy or evidence of women's achievements (!) (!) (!) . * Cadre Saturation: The claim that the Logistics cadre was saturated was rejected as a consequence of the Navy's failure to implement previous judgments and non-consideration of women officers for PCs (!) (!) .
Directions and Relief * Enforcement of Regulation 203: The stipulation in the 2008 policy making it prospective and restricting cadres shall not be enforced (!) (!) . * Consideration for PCs: All SSC officers in the Education, Law, and Logistics cadres presently in service shall be considered for PCs based on vacancies and merit (ACRs) (!) (!) . * Reinstatement and Pension for Retired Officers: * Officers released prior to 2008 (Respondents 2-6) will be deemed to have completed substantive pensionable service and entitled to pensionary benefits (!) (!) . * As a one-time measure, these specific retired officers are entitled to a compensation of Rs. 25 lakhs each for lost years of service (!) (!) . * ATC cadre officers in Annie Nagaraja's case are not entitled to PCs (as men are not considered for PCs in that cadre) but are entitled to pensionary benefits (!) (!) . * ATC Cadre in Priya Khurana's Case: Officers inducted under the July 2002 advertisement, which held out a representation of consideration for PCs, shall be considered for PCs (!) (!) .
JUDGMENT :
Dhananjaya Y Chandrachud, J.
| Index | ||
| A | Background of the dispute | |
| A.1 | Annie Nagaraja's case | |
| A.2 | Priya Khurana's case | |
| B | Statutory and Policy framework | |
| C | Submissions | |
| D | Preliminary Objection | |
| E | Validity of the policy letter dated 26 September 2008 | |
| F | The stereotypical sailor | |
| G | Ex turpi causa non oritur actio | |
| H | Directions | |
A Background of the dispute
1. The present batch of Civil Appeals comes up for adjudication from two decisions, the first in point of time being that of the High Court of Delhi and the second, being that of the Armed Forces Tribunal("AFT").
A.1 Annie Nagaraja’s case
2. Six Writ Petitions under Article 226 of the Constitution were instituted before the Delhi High Court. The petitioners, seventeen in number, were women officers who joined the Indian Navy as Short Service Commissioned("SSC") Officers in the Logistics and Air Traffic Controller("ATC") cadres and the Education branch. Six of them were officers in the Logistics cadre, nine in the Education branch and two in the ATC cadre. Their grievance is that despite completing fourteen years of service as SSC officers, they were not considered for the grant of Permanent Commissions("PC") and were discharged from service.
3. The case which was set up before the High Court was that women SSC officers of the Indian Army and Air Force had been granted PCs by the judgment of the Delhi High Court in Babita Puniya v Union of India(Writ Petition © No. 1597 of 2013, delivered on 12 March 2010) ("Babita Puniya"). The Air Force implemented the decision of the Delhi High Court. The Indian Army was in appeal before this Court against the judgment in Babita Puniya.
4. The Union of India in the Ministry of Defence("MoD") issued a policy letter dated 26 September 2008 granting PCs to SSC officers in all the three branches of the Armed Forces. However, the offer was restricted to certain categories and was to operate prospectively for the benefit of future batches inducted on SSCs after January 2009. The Delhi High Court expressly noted that the denial of combat roles to women was not in issue in the Writ Petitions. By its judgment dated 4 September 2015, the High Court issued the following directions:
"50. (a) The claim of absorption in areas of operation not open for recruitment of women officers cannot be sustained being a policy decision.
(b) The Short Service Commissioned Officers of the Navy who had opted for PC and were not granted PC but instead were granted extension of SSC and were not retired at the time of filing of these Writ Petitions and had attained the age of retirement during the pendency of the present petitions, they shall be offered PC within a period of 6 weeks from the date of this order. They shall be entitled to all consequential benefits such as promotion and other financial benefits subject to their medical fitness. However, their appointment to the post of PC shall be subject to the final outcome of the said SLP i.e. CC No. 10437/2010 title Secr. Ministry of Defence v. Babita Puniya & Anr. Pending consideration before the Hon‘ble Supreme Court;
© With respect to the petitioners who had attained the age of superannuation prior to the filing of the Writ Petitions by them the following directions are required to be issued:
1. The respondents shall reinstate these petitioners within a period of six weeks from today on their respective posts;
2. Such reinstatement shall be subject to the final outcome of the said SLP i.e. CC No. 10437/2010 titled Secr. Ministry of Defence vs. Babita Puniya & Anr. Pending consideration before the Hon'ble Supreme Court;
3. The petitioners are entitled to no benefits;
4. The reinstatement of the petitioners shall be subject to their medical fitness."
5. Since the earlier decision of the Delhi High Court in Babita Puniya was the subject matter of proc
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